Appeal from the Circuit Court of Cook County No. 07 CR 4931 Honorable Domenica A. Stephenson, Judge Presiding.
The opinion of the court was delivered by: Justice Murphy
JUSTICE MURPHY delivered the judgment of the court, with opinion. Justices Neville and Salone concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant Gustavo Ramirez was convicted of four counts of bribery, and the trial court sentenced him to 4 terms of 4 years' probation and 40 hours of community service, to be served concurrently. On appeal, defendant contends that the State failed to rebut his affirmative defense of entrapment beyond a reasonable doubt. Defendant also contends that he was denied his right to present a defense where the trial court prevented him from presenting evidence that he had never previously engaged in bribery or a similar type of conduct. Finally, defendant contends that two of his convictions violate the one-act, one-crime doctrine. For the following reasons, we vacate one of defendant's convictions for bribery and affirm in all other respects.
¶ 3 The State charged defendant with multiple counts of bribery and proceeded to trial on six of those counts based on allegations of conduct that took place on November 16, November 21, December 4, December 15, December 18, and December 19, 2006. The count for November 16 alleged that defendant, with the intent to prevent the demolition of his garage by the City of Chicago (City), promised to buy lunch for Angelina Recendez, a public employee, which she was not authorized by law to accept. The count for November 21 alleged that defendant, with the intent to prevent the demolition of his garage by the City, promised or tendered money to Hector Arellano, a public employee, which he would not be authorized by law to accept. The count for December 4 alleged that defendant, with the intent to prevent the demolition of his garage by the City and to remove building code violation complaints from its records, promised or tendered money and a City of Chicago water department (Water Department) plumbing key to Arellano, which he would not be authorized by law to accept. The counts for December 15 and 18 alleged that defendant, with the intent to influence the removal of building code violation complaints from the City's records, promised or tendered money to Arellano, which he would not be authorized by law to accept. The final count alleged that on December 19 defendant, with the intent to influence the removal of building code violation complaints from the City's records, promised or tendered a Water Department plumbing key to Arellano, which he would not be authorized by law to accept. Defendant was convicted of the four counts of bribery alleging criminal conduct on December 4, 15, 18, and 19, 2006.
¶ 4 Before the trial, the defense filed a motion to introduce evidence regarding prior criminal conduct by four former employees of the City of Chicago buildings department (Buildings Department). Each of these employees was either a building inspector or supervisor and had been indicted in the United States District Court for the Northern District of Illinois. Defendant asserted that the evidence showing that he did not try to bribe these four employees at any time, despite their predisposition for accepting bribes, was relevant because he was raising an entrapment defense and this evidence would help prove that he was not predisposed to commit bribery. Defendant also alleged that there was no evidence showing that he had engaged in prior conduct involving bribery or any similar offense, had ever paid bribes to maintain his properties in Chicago, or had ever solicited bribes as a public employee for the City. The trial court denied the motion, finding the evidence irrelevant where defendant did not have contact with the Buildings Department employees at issue.
¶ 5 At trial, Angelina Recendez, an administrative assistant for the demolition bureau of the Buildings Department, testified that at about 9:30 a.m. on November 16, 2006, defendant called her office and asked to speak with a supervisor about a property on which he had received a notice of demolition. Recendez told defendant all the supervisors were in a meeting, but that someone would call him back later. Defendant then told Recendez that he had some tacos and would bring them to her or get her "anything she wanted" if she would help him out by deleting his building violations from the computer system, and Recendez responded "no, I can't do that." Defendant then asked Recendez if she had any clout, and when she replied that she did not, he told her that he had "good clout" and could help her out. Recendez testified that her phone conversation with defendant lasted about 20 minutes, and she admitted to having previously testified at an administrative hearing but denied testifying at that hearing that the phone call lasted 30 to 45 minutes. Recendez also testified that she was the only person in the demolition bureau answering phones that day -- all the supervisors were in an extended meeting for the day -- and she estimated that the bureau receives about 160 calls a day, each of which must be referred to a supervisor.
¶ 6 Recendez further testified that after speaking with defendant, she notified her supervisor and the City of Chicago office of the inspector general (IG) of the call. On November 21, 2006, Recendez went to the IG office and met with two supervisors and Hector Arellano. At 8:45 a.m. that morning, Arellano instructed Recendez to call defendant and Arellano listened in on the call with his ear to the phone as she did so. In that call, Recendez told defendant that she had a friend who was an inspector and could help him with his violations and asked if she could give him defendant's phone number, and defendant acquiesced.
¶ 7 Arellano testified that in November 2006, he was an investigator
specialist with the IG and was assigned to work undercover as a
Buildings Department inspector in order to investigate defendant after
Recendez had reported defendant's phone call to her supervisor.
Arellano called defendant at 9:40 a.m. on November 21, 2006, after
Recendez had called him, posing as a building inspector. Arellano told
defendant that he was from the Buildings Department and that he would
be able to help with defendant's garage problem at 8526 S. Burley.
After defendant told Arellano that the garage only needed minor
repairs, the two decided to meet at the property
at 2 p.m. that day.
¶ 8 When Arellano went to meet defendant, he wore a "Hawk," which is a device that can record audio and video. Arellano only turned on the video function during this first meeting and the State played the video recording of that meeting for the jury while Arellano testified as to the events as they transpired. Arellano testified that when he first arrived at defendant's garage, defendant was accompanied by his handyman, who did not identify himself. The three men then walked to defendant's garage and Arellano told defendant that it was dilapidated and dangerous. The unidentified man asked Arellano what needed to be done to avoid demolition, and Arellano responded that defendant would either need to get permits to demolish the garage or repair it. Then Arellano asked to speak with defendant alone, and they moved about 15 feet away from the unidentified man and toward the front of the property.
¶ 9 Arellano also testified that while they were alone, he told defendant that Recendez had told him that defendant wanted someone to erase his building violations from the computer and that defendant "wanted to do some business." Arellano testified that defendant did not look surprised and did not hesitate before agreeing to "do business." When Arellano told defendant that he could delete the violations, defendant asked how much it would "run" him. Arellano asked defendant what he thought was a fair amount and noted that he would incur labor costs of $2,000 to $3,000 for the City to demolish the building and $250 in fines that had accrued. Defendant suggested he pay Arellano $200, but told Arellano that he only had $60 at that time and would pay the rest at a later date. After paying Arellano, defendant told him that he was a fellow city employee and that he worked for the Water Department. Arellano told defendant that "if he had any other permits or anything he needed to give me a call." The two then shook hands, and Arellano departed.
¶ 10 Arellano further testified that he called defendant on November 29, 2006, to inquire about the remaining $140 of the $200 defendant had promised to pay him for removing the violations from the computer system. Defendant told Arellano that he had left the $140 with his handyman in an envelope and that Arellano had not come to pick it up. Arellano said he had been out of town and defendant agreed to have the money by the next Monday.
¶ 11 On November 30, 2006, Arellano obtained a court order for a consensual overhear, which allowed him to record all future conversations with defendant, whether over the phone or in person. Arellano and defendant met on December 4, 2006, at 3:45 p.m. on the southeast side of Chicago, a block away from Burley Avenue, and the State played an audiovisual recording of their meeting for the jury. The recording showed that defendant got into Arellano's car and put $140 on the passenger seat without any verbal prompting from Arellano. Arellano brought the paperwork for the building at 8526 S. Burley to give to defendant, and defendant asked if he could get a wholesale rate on the next deal because he had other issues with other buildings. Arellano agreed and gave defendant a phone number to call. Arellano then asked defendant if he had any other garage issues, and defendant told him about one with good walls and a bad roof. Arellano asked defendant if he could help out one of his friends whose water had been cut off, and defendant told Arellano that he could get a key his friend could use to turn the water back on. Defendant said that he would give Arellano the key if Arellano took care of his violations. Arellano told defendant to call him the next day and left.
¶ 12 On December 5, 2006, Arellano and defendant spoke on the phone. A recording of that conversation was played for the jury. The recording showed that defendant gave Arellano the addresses of three of his properties on South Buffalo Avenue that had garage problems. The State next played recordings of phone conversations between defendant and Arellano, which showed that they spoke on the phone and left messages for each other several times between December 7 and 15, 2006, before agreeing to meet on December 15. The recordings also showed that Arellano referenced defendant's approaching administrative hearing on December 22 and said that they needed to meet up soon to take care of it.
¶ 13 On December 15, 2006, defendant and Arellano met for lunch to discuss defendant's other violations and an upcoming hearing for one of them. The recording of that meeting was played for the jury and reflected that defendant told Arellano that there were three properties with violations. When defendant asked how much it would cost to delete the violations from the computer, Arellano said they would cost $50 each and that he would make copies of the paperwork for those three properties. Defendant then told Arellano that he had a big violation that was up for a hearing soon and that he would be willing to pay $150 for Arellano to get rid of it. Arellano told defendant that he would take care of it immediately since there was such a time contingent. Defendant said that he could meet Arellano the following week to pay him half of the $300 he owed him for deleting the violations off the four properties. Arellano then asked if defendant had the water key, and defendant responded that he would pick it up the next day.
¶ 14 Defendant and Arellano met again on December 18, 2006, and the recording from that meeting was played for the jury and showed that defendant gave Arellano $140 of the $150 he owed him and stated that he still owed him "a ten." Although Arellano ...